Romeo Rosas v. State ( 2005 )

                              NUMBER 13-04-213-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

ROMEO ROSAS,                                                                               Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

      On appeal from the 156th District Court of Bee County, Texas.

                       MEMORANDUM OPINION

                  Before Justices Yañez, Castillo, and Garza

                            Memorandum Opinion by Justice Garza

Appellant was indicted and convicted of burglary of a habitation and sentenced to twenty-five years= imprisonment.  See Tex. Penal Code Ann. ' 30.02(a)(1) (Vernon 2003).  By one issue, appellant contends that the evidence is legally insufficient to support his conviction because the owner of the habitation named in the indictment did not testify at trial.  See Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003) (stating the well-settled standard of review for legal sufficiency challenges).  Although the owner named in the indictment did not testify at trial, her mother, who holds title to the premises, did testify. She stated that she had asked her daughter to look after her house while she was traveling out of state for about two weeks.  She did not know appellant and had never seen him before trial.  She also testified that she did not give anyone other than her daughter permission to go into her home while she was gone.  In addition, a written and signed confession was admitted into evidence in which appellant stated that he kicked in the door of the habitation and walked inside when no one answered his knocking.  Viewed in the light most favorable to the verdict, this evidence is legally sufficient to establish lack of consent.  We recognize no fatal variance between the indictment and the proof because the proof supports the indictment=s allegation that appellant entered the habitation without the consent of its owner. Although the owner named in the indictment did not testify at trial, the evidence produced by the State established that appellant had no consent from any of the owners prior to entering the habitation.  See Tex. Penal Code Ann. 1.07(a)(35) (Vernon Supp. 2004B05) (defining Aowner@ as a person who Ahas title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.@). Accordingly, appellant=s sole issue is overruled and the judgment of the trial court is affirmed.   

DORI CONTRERAS GARZA

Justice

Do not publish. 

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered

and filed this the 7th day of July, 2005.